BRIJMOHAN MATTULAL Vs. MT. CHANDRABHAGABAI

JUDGEMENT

(1.) THIS is a second appeal by the judgment-debtor. In execution of a decree for specific performance passed in favour of the decree-holder-respondent in civil Suit No. 39 of 1933 he took possession of certain property and now claims an additional property, namely, the open site A.B.C.J. shown in the decree-holder's map which according to the decree-holder was included in the property that was agreed to be sold to him by the judgment-debtor and in respect of which a decree for specific performance was passed in his favour. Both the Courts below have held that the site A.B.C.J. was included is the property agreed to be sold, and in respect of which a decree was passed and the decree-holder was therefore entitled to be put in possession of that property in execution of the decree in civil Suit No. 99 of 1933.

(2.) APART from the merits of the case, the appellant-judgment-debtor contended that the executing Court had no jurisdiction to execute the decree in respect of possession of the site; as the decree passed in civil Suit No. 99 of 1933 was merely a decree for specific performance and not for delivery of possession. The question was no doubt raised for first time in second appeal but it goes to the very root, namely, the question of jurisdiction of an executing Court. An executing Court cannot execute anything which goes beyond the terms of the decree passed and the scope of the decree cannot be ascertained from the decree itself which is on the record (paper book page 5). I do not therefore see any valid ground for not allowing the appellant to raise this question. If the executing Court had no jurisdiction at all to execute the decree, then the decree-holder's application under Section 47, Civil P.C., murft necessarily fail and will have to be dismissed on that ground alone without going into the merits of the question decided by the two Courts below.

(3.) I further find from the decree that no decree was passed for delivery of possession of the house. Relevant portion of the decree runs thus: It is ordered that the plaintiff do deposit in Court for payment to the defendant on or before 28-8-34 the sum of Rs. 2,402-12-0 and it is further ordered that the plaintiff do produce and file in Court the necessary stamp paper for the execution of sale-deed on or before 28-8-34. It is further decreed that on the plaintiff's doing this the defendant shall execute the necessary sale-deed conveying the house described below to the plaintiff and. shall get it registered at the cost of the plaintiff, and that the sum of Rs. 386-4-0, be paid by the defendant to the plaintiff on account of costs of this suit in case plaintiff does not deduct this sum from the sale price.